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Internal Investigations 101: Weingarten Rights (Part IV)

An internal investigation is an important mechanism an organization can use to address an allegation of wrongdoing, determine legal liability, identify individuals or parties with culpability, comply with regulatory requirements, develop corrective measures and enhance operational efficiencies. Buckner is pleased to continue its blog series highlighting best practices, strategies and techniques that can be used by organizational leaders and counsel during an internal investigation. Today’s post will continue our overview of Weingarten Rights, which came as a result of the United States Supreme Court’s 1975 decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), which upheld a National Labor Relations Board (NLRB) decision that held employees possess a right to union representation during investigatory interviews:

According to “Weingarten Rights”, which was published by the University of Massachusetts Amherst, an employee does not have the right to the presence of a union representative where the following conditions exists:

  1. The meeting between the employer and employee is “for the purpose of conveying work instructions, training or communicating needed corrections in the employee’s work techniques”.
  2. The employer assures the employee prior to the meeting or interview “that no discipline or employment consequences can result” from the exchange.
  3. The employer made a final determination on disciplinary action regarding the employee prior to the meeting, so the purpose of the meeting “is to inform the employee of the discipline or to impose it”.
  4. The employee initiates a conversation or discussion regarding “previously determined discipline” and the meeting occurred “without employer encouragement or instigation after the employee is informed of the action”.

The employee can request union representation even during meetings involving the four conditions above, and “most employers will permit a representative to attend even when not required to”.

Source: “Weingarten Rights”, University of Massachusetts Amherst, available at: ahttps://www.umass.edu/usa/weingarten.htm.

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About Michael L. Buckner, Esquire

An attorney who provides clients with internal investigation, civil litigation, estate planning and compliance services.

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